The following post is my letter to Nilay Patel regarding his take on the recent decision by Boxee to drop support for the Boxee Box in favor of their new hardware the Boxee TV. As always, the opinions expressed below are mine alone and do not necessarily reflect the opinions of the XBMC Foundation or Team XBMC.

Hey Nilay,

First, let me say I’m a big fan. Your take on software patents totally changed my thoughts on the topic. Nice work.

Second, I’d like to note that while I am an XBMC Project Manager, I am speaking only for myself, and my words should not be taken as a representation of XBMC the Team or XBMC the foundation.

With that said, I felt the need to address your recent column on Boxee TV. If this starts a conversation, awesome. If it does not, life goes on.

As far as I can tell, the last time the consumer has won a victory in the American court system and legislature with regards to copyright was 1984 with the famous (or infamous) Betamax case, when the court ruled that time shifting was fair use.  Since then, as far as I can tell, every single piece of legal opinion and legislation has been designed to limit or minimize the decision of the Betamax case.

Today, people can stil record and timeshift for personal purposes under Fair Use, but they cannot break encryption, share with friends and family, download software that enables the breaking of encryption, or access unencrypted cable content (thanks, FCC).

In other words, people have the right to fair use, but they barely have the ability.

For the past several years, Boxee has been one of the lone for-profit companies who appeared actively to be defending the rights of consumers to consume content the way they wanted. The “weird video files” as you described them were the mkvs and mp4s of users who had decided to take the Betamax case to heart. Every mkv video file had been legally created by an individual who recorded an episode of TV (as was his right), stripped out the commercials of the episode (as was his right), and then shared that episode without any intent of profitting from sharing (literally the first – and by extension most important – factor of the Four Factors Fair Use test, until recent legislation and political lobbying made the first factor, as it relates to the nonprofit nature of the use, the least important factor).

Boxee ensured that users could playback these files, along with almost every piece of content online. They actively promoted the ease of writing a simple plugin to make online video playback simple. Indeed, they fostered an entire community of plugin developers devoted to making the Boxee experience better!

However, now Boxee appears to have completely reversed course. They no longer support “weird video files.” They no longer provide users with a simple way to access content that those users have a legal right to access on the TV. Two years ago Jeff Zucker railed against Boxee to Congress and said that they were “illegally taking” content, when it was absolutely clear that theft of services was simply not occurring. Then, rather than taking Congress’s decision to side with Boxee in the case of Comcast’s acquisition of NBC to heart, the Boxee team have been actively working to make online content access more difficult. And they have been doing so ever since they moved away from the Boxee software platform to the Boxee Box platform and now the Boxee TV platform.

Old avacados are yucky!

Needless to say, that community of Boxee plugin developers has now been tossed aside like yesterday’s avocado dip.

It was nice to know that once upon a time there was a for-profit company who actually wanted consumers to have some kind of Fair Use rights. It is disheartening to find out, in retrospect, that they no longer have that goal.

But the fact that Boxee does not appear to care about the fair use rights of consumers is not the only disheartening issue in the column you wrote. Indeed, it is not even the most disheartening issue. The most disheartening issue is the fact that they appear now actively to be working AGAINST those very rights. You quoted Avner stating that 89 of the top 100 shows were on broadcast TV, and 95 of the top 100 events were on broadcast TV. By definition, this means that the vast, VAST majority of consumed TV content can still be gotten without the need to break encryption, which means users can do with their content as they please.

Except consumers can’t do so using Boxee TV. With a Boxee TV, the only recording option of the user is to convert the video file to Boxee’s preferred format, encrypt the file, and then send the file to Boxee’s cloud service. There’s no local storage. There’s no sending the file to an alternative cloud storage. And there’s no accessing that file using software that doesn’t meet Boxee’s standard. The only right users had with broadcast TV, the ability to do with it as they pleased, Boxee is working to remove.

I think all of that is disappointing, disheartening, and lacking in a certain degree of morality. I don’t find it at all funny. I do not guffaw in merriment at the incredible way in which Boxee appears to have turned its back on all the people who have supported it for the past several years. I do, however, find one piece of your article humorously ironic. Two years ago, Boxee had the good will of the people. They were the mouse roaring in the faces of the lions of Comcast and NBC and Viacom and every other industry bully. They had over 2 million users, and all signs pointed to more and more users as time went on. Then they dropped software support and lost approximately 1.8 million users. Now they’ve dropped the Boxee Box, and managed to lose the remaining 200,000 users. And yet now, with their own actions resulting in a user base approaching zero, an incredibly uncertain revenue stream, and goodwill so far into the red that it may never see black again (have you seen the comments in Boxee’s announcement?), you managed to get this quote: “We weren’t as savvy… I think now we’re much more sophisticated.”

I can’t decide whether to laugh or cry or simply shake my head in embarrassment at that statement. It appears Avner has mistaken business savvy with getting wealthy corporations as friends.  Though maybe I’m wrong. Maybe the move to strip user rights away and marginalize one’s company in the grand scheme of things will ultimately make Boxee stronger and more profitable. I like many of the Boxee dev team and hope to see them successful, so such a result would be nice for them. But from a consumer standpoint, and from the standpoint of a citizen of the United States, I certainly hope that this move is the final nail in the Boxee coffin.

Most frustrating of all is the fact that, as an XBMC team member facing yet another rush of ex-Boxee users, I should be very pleased with this decision, but honestly, I’m not. Boxee, Plex, and XBMC have all been pushing each other to advance over the past four years. The competition for eyeballs has led to some incredible software (and a few stinging words). With Boxee’s decision to go down the Boxee TV road, I’m afraid the world will be left with one less competitor dedicated to true innovation for the sake of the media consumer.

In the end, as always, it is the user and the consumer who loses. And that sucks.

Sincerely,

Nathan Betzen